State v. Fourtin

CourtSupreme Court of Connecticut
Citation307 Conn. 186,52 A.3d 674
Decision Date28 September 2012
Docket NumberNo. 18523.,18523.
PartiesSTATE of Connecticut v. Richard FOURTIN.

307 Conn. 186
52 A.3d 674

STATE of Connecticut
Richard FOURTIN.

No. 18523.

Supreme Court of Connecticut.

Argued Oct. 17, 2011.
Decided Sept. 28, 2012.

[52 A.3d 676]

Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellant (state).

Robert E. Byron, special public defender, for the appellee (defendant).

Nancy B. Alisberg filed a brief for the office of protection and advocacy for persons with disabilities et al. as amici curiae.



[307 Conn. 188]After a jury trial, the defendant, Richard Fourtin, was convicted of attempt to commit sexual assault in the second degree in violation of General Statutes §§ 53a–71(a)(3)1 and 53a–49 (a)(2),2 and sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a–73a (a)(1)(C),3 both of which require proof beyond a reasonable doubt that the victim,4 at the time of the offense, was physically helpless.5 Under General Statutes § 53a–65 (6), a person is physically helpless if he or she is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.” After the state had presented its case at trial, and again following the close of evidence, the defendant filed a motion for a judgment of acquittal, claiming that the state had failed to offer sufficient evidence that the victim was physically helpless. The trial court denied the motions and rendered judgment of guilty in accordance with the jury verdict, and the defendant appealed to the Appellate Court. That court considered the sole issue of whether the jury [307 Conn. 189]reasonably could have found that the state introduced sufficient evidence to prove that the victim was unable to communicate her lack of consent to the defendant's sexual advances and concluded that the state had failed to sustain its evidentiary burden. See State v. Fourtin, 118 Conn.App. 43, 48, 53, 982 A.2d 261 (2009). The state, in its appeal to this court upon our granting of certification;

[52 A.3d 677]

State v. Fourtin, 294 Conn. 925, 926, 985 A.2d 1062 (2010); claims that the Appellate Court improperly reversed the judgment of the trial court. We disagree and affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth certain of the facts that the jury reasonably could have found, as well as some of the relevant procedural history. “In February, 2006, the twenty-five year old [victim] lived in an apartment complex with her mother [S]. The defendant, who was [S's] boyfriend ... lived nearby.6 He frequently assisted [S] in caring for the [victim]. The [victim] got along with him.

“The [victim] is a woman with significant disabilities that affect the manner in which she interacts with others. She [suffered a brain hemorrhage after being born three months premature, and her disabilities include] cerebral palsy, mental retardation and hydrocephalus. She cannot walk and needs assistance in performing the activities of daily living. She is nonverbal but communicates with others by gesturing and vocalizing and through the use of a communication board.7 To manifest [307 Conn. 190]her displeasure, she can kick, bite and scratch. The [victim] can also vocalize her feelings by groaning or screeching.

“In 2006, the [victim] was attending an adult day care program for ... physically, emotionally or mentally disabled [persons]. Deacon Raymond Chervenak was a staff member at the day care program with whom the [victim] regularly communicated about her interest in sports.8 On February 23, 2006, Chervenak observed that the [victim] looked ‘aggravated’ and ‘scared.’ In response to Chervenak's inquiry, the [victim], by means of appropriate gestures 9 and the use of a communication board, made him aware that the defendant had sexually assaulted her at her home. In similar fashion, the [victim] repeated this accusation to Frances Hernandez, the supervisor of the adult program, by pointing to her own body parts and [to] Chervenak's

[52 A.3d 678]

body parts.10 A subsequent medical examination disclosed physical [307 Conn. 191]symptoms consistent with the [victim's] report that she had been sexually assaulted.” State v. Fourtin, supra, 118 Conn.App. at 46–47, 982 A.2d 261.

In addition to the testimony of Chervenak and Hernandez, the assistant state's attorney (prosecutor) elicited testimony from Dee Vetrano, the director of residential support at the victim's group home, regarding the victim's ability to communicate her preferences. Specifically, the state asked Vetrano whether the victim “is susceptible to being suggested to or manipulated in any way?” Vetrano replied: “No. She is not.... She's ... very direct in what her beliefs are or what her feelings are toward others. [The victim is] actually ... one of [the] people we use when we hire staff. We do initial interviews with staff, and if there's someone that we're interested in hiring, we always bring them to the house ... to see them interact with clients.... We have had a situation where one individual was hired ... and it's someone that the group home manager felt strongly about, and [the victim] to this day does not care for this person. It's not that she hates her ... but she really ... prefer[s] [not] to have that individual work with her, and she still expresses that, even after knowing that it's someone [who] I value as an employee.... So, she's not swayed in any way by her feelings ... and she will always consistently indicate those to us.”

S testified similarly that the victim was able to express her feelings and emotions. When the prosecutor asked S whether the victim had gotten along with S's former husband, the victim's stepfather, S responded: “[H]e got along with her. She did not like him.” S explained that the victim “would always be frowning [when he was around] and she never wanted him near her.... And she ... would try to hurt him.” When the prosecutor asked S whether the victim would try to hurt him physically, S responded: “Physically. Biting, [307 Conn. 192]scratching, leaving marks ... [k]icking.” Subsequently, during cross-examination, defense counsel asked S whether the victim had “any problem whatsoever communicating that she did or didn't want to do something....” S responded that the victim “never had a problem.” Defense counsel then asked: “If you took her to the shower when she didn't want to go to the shower, I think you testified [that] she would bite you?” S responded, “Yes, and kick [and] scratch.”

Finally, the prosecutor also presented the testimony of two physicians, both of whom previously had examined the victim, regarding their ability to communicate with her. Jose Reyes, an obstetrician and gynecologist, testified that when he treated the victim for dermatitis in her genital area in 2005, he communicated with the victim through S because he was unable to communicate with the victim directly. The prosecutor also asked James Bovienzo, an emergency department physician who had examined the victim after the alleged sexual assault, whether he was “able to discuss matters with [the victim] while [he was] involved in collecting any evidence in this case....” Bovienzo replied that “[t]he patient

[52 A.3d 679]

was noncommunicative.” 11

After the state presented its case, the defendant moved for a judgment of acquittal, outside the presence of the jury, on the ground that the evidence was insufficient to establish that the victim had been physically helpless at the time of the alleged sexual assault. Specifically, the defendant argued that there was uncontroverted evidence that the victim could communicate her lack of consent by biting, kicking, screaming and gesturing.[307 Conn. 193]The state opposed the motion, arguing that the issue of physical helplessness and the question of whether the victim was unable “to communicate her wishes” was a question of fact for the jury. The trial court denied the defendant's motion on the ground that the state had presented sufficient evidence to allow the matter to be decided by the jury.

Thereafter, the defense called several witnesses who testified that the victim often used gestures, kicking, biting, screaming or screeching to express herself. Sandra Newkirk, a home health aide who had cared for the victim for several months prior to the assault, testified that, when the victim did not receive the food she was expecting, “[s]he would have a fit.” During such a fit, “[s]he would kick and, you know, kick and sort of make a groaning noise.” Newkirk further testified that she had witnessed the victim scratch and bite S on a few occasions. The victim's grandmother, R, testified that the victim had a temper and that, “[i]f she didn't like what she was supposed to do, she would screech, and, to anyone who ... wasn't used to the noise ... it would be kind of unnerving.” R recalled that, sometimes, if the victim did not want to take a shower, she would bite S to the point of drawing blood, or, if the victim did not want to wear a particular pair of shoes, she would kick S when S bent down to put the shoes on her feet.

During closing argument, the prosecutor emphasized that the jurors had had an opportunity to observe the victim in the courtroom and contended that “[s]he's a young woman who ... is very, very limited in terms of what she can—what type of information she can pass on to you, the manner in which she can pass it on.” The prosecutor then asked the jurors to be mindful of the fact that the victim was “disabled to a point where she has some difficulty expressing herself in how she can get her message across in terms of what [307 Conn. 194]happened.” With respect to whether the victim was physically helpless at the time of the alleged assault, the prosecutor argued that the jurors could find that she was because, like an infant,...

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    ...theory of the case doctrine is rooted in principles of due process of law" (internal quotation marks omitted)); State v. Fourtin , 307 Conn. 186, 208, 52 A.3d 674 (2012) ("[I]t is well established that [o]ur rules of procedure do not allow a [party] to pursue one course of action at trial a......
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